# I n the United States Court of Federal Claims

BID PROTEST No. 15-1405C Filed Under Seal: December 7, 2015 Reissued for Publication: January 7, 2016 *

AMIDON, INC., Plaintiff,

v. THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) The Tucker Act, 28 U.S.C. § 1491(b)(1); Post-Award Bid Protest; Motion for Preliminary Injunction, RCFC 65.

John Bradley Reaves , Counsel of Record, ReavesColey, PLLC, Chesapeake, VA, for plaintiff.

John Sinclair Groat , Trial Attorney, Reginald T. Blades, Jr. , Assistant Director, Robert E. Kirschman, Jr. , Director, Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Commercial Litigation Branch, Ci vil Division, United States Depart ment of Justice, Washington, D.C., Lieutenant Colonel Mark Allen , Of Counsel, Major George M. Ebert , Of Counsel, United States Air Force, Air Force Commercial Litigation FSC, Mark Henderson , Of Counsel, United States Army Special Operat ions Command, for defendant.

MEMORANDUM OPINION AND ORDER GRIGGSBY, Judge

I. INTRODUCTION Plaintiff, Amidon, Inc. (“Amidon”), brought th is post-award bid protest challenging the United States Department of Defense, Unite d States Army Special Operations Command’s

* This Memorandum Opinion and Order was orig inally filed under seal on December 7, 2015 (docket entry 21), pursuant to the protective order entered in this action on November 23, 2015 (docket entry 17). The parties were given an opportunity to advise the Court of th eir views with respect to what information, if any, should be red acted under the terms of th e protective order. The parties filed a joint status repor t on January 6, 2016 (doc ket entry 23) proposi ng certain redactions which the Court has adopted. Accordingly, the C ourt is reissuing its Opinion and Order dated December 7, 2015, with the agreed redactions in dicated by three consecuti ve asterisks within brackets ([***]).2 (“Army”) decision to award a contract to provide medical training services to Advanced Computer Learning Company, LLC (“ACLC”). Amidon is the in cumbent contractor under a prior contract to provide these services. Amidon has filed a motion for a preliminary injunc tion requesting that the Court enjoin ACLC’s performance under the contract and direct the government to extend the time period for Amidon to continue performance under the existing contract until th e Court resolves this matter. For the reasons set forth below, the Court DENIES Amidon’s motion for a preliminary injunction.

II. PROCEDURAL AND FACTUAL BACKGROUND 1

A. Factual Background Plaintiff, Amidon, is the incumbent contract or under a government contract to provide medical training services at the Joint Special Oper ations Medical Training Ce nter located in Fort Bragg, North Carolina. Comp. at 1. Ami don and Advanced Computer Learning Company submitted the top two proposals to the Army to provide these services under a subsequent contract. Id . On July 23, 2015, the Army awarded that contract to ACLC. Def. App. at 81. Amidon subsequently protested the Army’s award decisi on before the Government Accountability Office (“GAO”) and thereafter, the Army extended the pe riod for Amidon to perform under its predecessor contract until November 30, 2015. Id. at 3. In its motion for a preliminary injunction, Am idon seeks a preliminary injunction “directing that Defendant United States of America acting th rough the Department of Defense be required to permit Amidon to continue its performance [under it s predecessor contract] un til the merits of this dispute can be considered.” Pl. Mot. at 1. In addition, Amidon seeks to enjoin ACLC’s performance under the contract. Def. Resp. at 2-3.

1 The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s complaint (Comp. at __”); plaintiff’s motion for a prelimin ary injunction (“Pl. Mot. at __”); plaintiff’s memorandum in support of its motion for a prelimin ary injunction (“Pl. Mem. at __”); defendant’s response and opposition to plaintiff’s motion for a preliminary injunction (“Def. Resp. at __”); defendant’s appendix to its respons e (“Def App. at __”); and plaintiff’s reply in support of its motion for a preliminary injunction (“Pl. Reply at __”). Except where otherwise noted, the facts cited herein are undisputed.3 1. The Request For Proposals The Joint Special Operations Medical Traini ng Center contracts for training support and medical instructors for certain courses conducte d at its United States Army John F. Kennedy Special Warfare Center and School , United States Army Special Op erations Command, located in Fort Bragg, North Carolina. De f. App. at 88. On May 7, 2015, the Army issued a Request for Proposals (“RFP”) for a contract to provi de these medical training services. Id . at 87-185. The RFP called for a contract with an ini tial one-year period of performance and two one-year option periods. Id . at 79. The RFP provided that the government w ould conduct the solicitation as an 8(a) competitive, best value, source selection in accord ance with Federal Acquisition Regulation Part 15 and Subpart 19.8. Id . at 79. The RFP also identified four f actors that the Army would evaluate in determining award: (1) qualifyi ng criteria; (2) management/techni cal plan; (3) past and present performance; and (4) price. Id . at 181. The management/technical plan and past and present performance factors contained in the RFP were speci fied as being significantly more important than price. Id . In addition, the management/technical plan factor consisted of three subfactors, which were to be considered in des cending order of importance: (1) management plan; (2) technical approach; and (3) documented corporate experience. Id . at 79, 181-83. Of particular relevance to this dispute, the R FP also specified that offerors shall provide a proposal with a technical approach that addresses live tissue laboratory training. Id. at 173. The RFP further instructed that offerors were to demo nstrate the “relevancy of corporate experience and core competency in conduc ting the required training.” Id

. Amidon, ACLC, and six other offerors s ubmitted proposals pursuant to the RFP. Id . at 80. The Source Selection Evaluation Board completed th e initial evaluation of the proposals on June 11, 2015. Id . at 236-37. Subsequently, on July 13, 2015, the contracting officer sent all offerors, including Amidon and ACLC, a request for a Best and Final Offer. Id . at 237-40. On July 17, 2015, the Source Selection Evaluation Board comple ted its evaluation of th e revised proposals and made a technical recommendation to award the contract to ACLC. Id . at 250-51. During the evaluation of the proposals, the Army assigned Amidon a final technical rating of “Good.” Id . at 51 (Source Selection D ecision Document). The Army assigned ACLC a final technical rating of “Outstanding.” Id . at 51, 261. In addition, ACLC ’s proposed price was [***] less than Amidon’s proposed price. Id . at 264.4 The Army’s Source Selection Decision Docume nt describes the agency’s best value determination for the contract as follows:

4. SOURCE SELECTION DECISION. When combining technical and confidence ratings outstanding is defined as having an exceptional approach and understanding of the requirements and strengt hs far outweigh any weaknesse s. As defined Amidon was determined outstanding. Amidon and ACLC after providing their BAFO and responses to clarifications and discussi ons were determined equally technically acceptable with the lowest prices. I have i ndependently reviewed the various elements of the proposal and the discussion results and have determined that an award to ACLC with an overall price [***] le ss than Amidon represents the lowest priced of the most highly rated technical offerors considering the criteria set fo rth in the solicitation. An award to ACLC offers the be st value to the Government.

Id. at 54, 264. The Army awarded the contract to ACLC on July 23, 2015. Id. at 81.

2. The GAO Bid Protest On July 28, 2015, Amidon protested the Army’s decision to award the contract to ACLC before the Government Accountability Office. Id . at 82, 339. In that protest, Amidon alleged that the Army failed to follow the RFP by: (1) i gnoring ACLC’s lack of documented corporate experience and ignoring the risk of unsuccessful performance; (2) imprope rly evaluating ACLC’s past performance, especially its lack of live tissue laboratory tr aining; (3) not conducting a price analysis to determine whether ACLC’s price was unrealistically low; and (4) conducting a flawed best value tradeoff analysis. Id. at 69, 342. The GAO denied Amidon’s protest on October 30, 2015. Id . at 339-44. In its denial decision, the GAO held that Amidon’s arguments “do not provide a basis to question the award to ACLC.” Id. at 342. The GAO also found that the evaluation of proposals, including the relevant merits of the pr oposals, is a matter within the discretion of the contracting agency, and that th e record before the GAO showed that the Army properly considered ACLC’s corpor ate experience along with the live tissue training experience of ACLC’s major subcontractor, Tactic al Element, Inc., who had recently provided live tissue training at the Joint Special Operati ons Medical Training Center. Id . at 343. Finally, the GAO determined that Amidon’s argument that Amidon deserved a hi gher performance confidence rating was without a factual basis in light of th e evidence before the GAO. Id

. During the GAO bid protest, Amidon continued to perform under several extensions of its predecessor contract. Id . at 55. The final extension of Amidon ’s contract expired on November 30,5 2015. Id . at 55-56, 58. ACLC commenced performan ce under the contract on December 1, 2015. Id. at 4; Pl. Reply 12-13.

B. Procedural Background Amidon filed its complaint in this matter on November 19, 2015. See generally Comp. On that same day, Amidon filed a motion for a prelimin ary injunction requesting that the C ourt direct the government to permit Amidon to continue to perform under its predec essor contract until the merits of this case have been decided. See generally Pl. Mot. On November 23, 2015, the parties participated in a telephonic stat us conference in which Amidon repr esented that it also sought to enjoin ACLC from commencing performance unde r the contract. On November 24, 2015, the government filed its response and opposition to Amidon’s motion for a preliminary injunction. See generally Def. Resp. The government attached to its response a number of documents, including ACLC’s Management Technical Plan, the Army’s technical evaluation summary statement, and the GAO’s bid protest decision. See generally Def. App. On November 25, 2015, Amidon filed a reply in support of its motion for a preliminary injunction. See generally Pl. Reply. On November 30, 2015, the Court held a status conference with the parties to discuss Amidon’s motion. During that status conference , the Court issued an oral decision denying Amidon’s motion for a preliminary injunction. Th e Court’s rationale for denying Amidon’s motion is set forth below.

III. JURISDICTION AND LEGAL STANDARDS

A. Jurisdiction And Bid Protests The Tucker Act grants the United States C ourt of Federal Claims jurisdiction over bid protests brought by “an in terested party objecting to a solicita tion by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the awar d of a contract or any alleged violation of statute or regulati on in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2012). In bid protest cases, this Court reviews agency actions under the “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). And so, under th e Administrative Procedure Act standard, an award may be set as ide if “(1) the procurement offi cial’s decision lacked a rational basis; or (2) the procurement procedure involv ed a violation of regul ation or procedure.” Banknote Corp. of Am., Inc. v. United States , 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa6 Construzioni Geom. Domenico Garufi v. United States , 238 F.3d 1324, 1332 (Fed. Cir. 2001)). The United States Court of Appeals for th e Federal Circuit has explained that: When a challenge is brought on the first gr ound, the test is whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a “heavy bur den” of showing that the award decision had no rational basis. When a challe nge is brought on th e second ground, the disappointed bidder must show a clear and prej udicial violation of applicable statutes or regulations. Id

. In reviewing an agency’s procurement deci sion, the Court should recognize that the agency’s decision is entitled to a “presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 415 (1971), overruled on other grounds by Califano v. Sanders , 430 U.S. 99 (1977) (citations omitted). The Court should not s ubstitute its judgment for that of the agency. Cincom Sys., Inc. v. United States , 37 Fed. Cl. 663, 672 (1997). And so, “[t]he protestor must show, by a preponderance of the evidence, that the agency ’s actions were either without a reasonable basis or in violation of applicable procurement law.” Info. Tech. & Applications Corp. v. United States , 51 Fed. Cl. 340, 346 (2001), aff’d , 316 F.3d 1312 (Fed. Cir. 2003); see Gentex Corp. v. United States , 58 Fed. Cl. 634, 648 (2003).

This standard “is hi ghly deferential.” Advanced Data Concepts, Inc. v. United States , 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark .–Best Freight Sys., Inc. , 419 U.S. 281, 285 (1974)). As long as there is “a reasonable basis fo r the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion . . . .” Honeywell, Inc. v. United States , 870 F.2d 644, 648 (Fed. Cir. 1989). But, if “the agency entirely fail[s] to consider an important asp ect of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence befo re the agency,” then th e resulting action lacks a rational basis and, therefore, is defi ned as “arbitrary and capricious.” Ala. Aircraft Indus., Inc.– Birmingham v. United States , 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)) (internal quotation marks omitted).

B. Preliminary Injunctions, RCFC 65

The Tucker Act authorizes this Court to “award any relief th at the court considers proper, including . . . injunctive relie f.” 28 U.S.C. § 1491(b)(2); see Rule 65 of the Rules of the United States Court of Federal Claims (“RCFC”). However, “a preliminar y injunction is an extraordinary7 and drastic remedy, one that should not be granted unless the mova nt, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong , 520 U.S. 968, 972 (1997) (emphasis omitted) (citation omitted); Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd ., 357 F.3d 1319, 1324 (Fed. Cir. 2004) (The award of a preliminary injunction is a “‘ drastic and extraordinary remedy that is not to be routinely granted.’” ). In deciding whether to grant preliminary in junctive relief, the United States Court of Appeals for the Federal Circuit has directed that the Court consider: (1) whether the plaintiff is likely to succeed on the merits of the case; (2) wh ether the plaintiff will suffer irreparable harm if the Court withholds injunc tive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief ; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States , 389 F.3d 1219, 1228-29 (Fed. Cir. 2004); FMC Corp. v. United States , 3 F.3d 424, 427 (Fed. Cir. 1993). “Although th e factors are not app lied mechanically, a movant must establish the existen ce of both of the first two factors to be entitled to a preliminary injunction.” Altana Pharma AG v. Teva Pharm. USA, Inc. , 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com, Inc. v. Barnesandnoble.com, Inc. , 239 F.3d 1343, 1350 (Fed. Cir. 2001)). In addition, “[n]o one factor, taken individually, is n ecessarily dispositive,” a nd “the weakness of the showing regarding one factor may be over borne by the strength of the others.” FMC Corp. , 3 F.3d at 427. But, “the absence of an adequate showing with regard to any one factor may be sufficient, given the weight or lack of it assi gned to the other factors, to ju stify the denial” of a motion for a preliminary injunction. Id

. IV. ANALYSIS In its motion for a preliminary injunction, and in subsequent representations to the Court, Amidon requests that the Court enjo in ACLC’s performance under the contract and direct the Army to extend Amidon’s existing contract until the resolu tion of this matter. In this regard, Amidon argues that the Army’s decision to award the contra ct to ACLC lacked a rational basis, and that Amidon will be irreparably harmed if ACLC is permitted to commence performance. See generally Pl. Mem. The government opposes Amidon’s mo tion and argues that Amidon has not met its burden to show that it is enti tled to a preliminary injunction. See generally Def. Resp. In this regard, the government argues that the Army acted reasonably in awarding the contract to ACLC and that the factors that the Court must consider in weighing a motion for a preliminary injunction weigh against granting Amidon’s motion. See generally Def. Resp. For the reasons discussed8 below, the undisputed facts in this matter show that Amidon has not es tablished that it is entitled to preliminary injunctive relief. And so, the Court must deny Amidon’s motion. RCFC 65.

A. Amidon Is Unlikely To Succeed On The Merits There can be no dispute that, as the incumb ent contractor, Amidon will be significantly harmed by the loss of its contract to provide medical training serv ices to the Army. See generally Pl. Mem. But, even if the Court were to accept that such harm is “irreparable ,” the other factors that the Court must weigh in considering Amidon’s mo tion for a preliminary injunction weigh against granting Amidon’s motion. PGBA , 389 F.3d at 1228-29. As discussed above, when deciding whether to grant a motion for preliminary injunctive relief, this Court must consider four factors: (1 ) whether the plaintiff is likely to succeed on the merits of the case; (2) whether the plaintiff w ill suffer irreparable harm if the Court withholds injunctive relief; (3) whether the balance of hardships to the resp ective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. Id .; FMC Corp ., 3 F.3d at 427. “Although the factors are not appl ied mechanically, a movant must establish the existence of both of the fi rst two factors to be entitled to a preliminary injunction.” Altana Pharma AG , 566 F.3d at 1005. Amidon has not shown that it is likely to succeed on the merits of this case. To establish that it is likely to succeed on the merits of its bid protest, Ami don must show, by a preponderance of the evidence, that the Army’s ac tions in awarding the contract to ACLC “were either without a reasonable basis or in viol ation of applicable procur ement law or procedure.” Info. Tech. & Applications Corp. , 51 Fed. Cl. at 346. This is a “heavy burden.” Impresa , 238 F.3d at 1333, 1338. The undisputed facts in this case show that Amid on cannot satisfy its burden here. First, the record before the Court contradi cts Amidon argument that the ACLC ’s proposal did not address the RFP’s requirement that offerors ha ve experience with “live tissue tr aining.” Pl. Mem. at 3; Def. App. at386. In this regard, the RFP provides that the offerors shall address in their proposal “live tissue laboratory training” and shall demonstrate the relevancy of corporate experience in conducting such training. Def. App. at 173. A plain reading of ACLC’s Management Technical Plan, which was submitted as part of ACLC’s proposal, shows that ACLC provided a detailed overview of the live tissue laborat ory training that ACLC intends to provide under the contract. Def. App. at 386 (ACLC’s Management Technical Pl an). In addition, the Management Technical9 Plan also states that at least one of ACLC’s employees has experience in conducting live tissue training. Id . at 444. The Management Technical Plan further provides that ACLC’s proposed subcontractor, Tactical Element, Inc., also “specia lizes in providing tactical combat casualty care (TCCC) operations and training” and possesses an expertise in other ar eas of medical care training. Id . at 353. Amidon does not dispute any of these facts. Pl. Mem. at 3; Pl. Reply at 3. Given that, the undisputed evidence before the Court shows th at ACLC did address live tissue training in its proposal. And so, Amidon has not shown that there is a substantial likeli hood that it would succeed upon the merits of its claim. The evidence currently before the Court also calls into question Ami don’s allegation that the Army failed to follow the RFP’s required methodology for reaching a best value determination. Pl. Mem. at 3-5. In this regard, Amidon argues that its proposal and AC LC’s proposal received equivalent final technical ratings , and that the Army awarded the contract to ACLC because ACLC offered the lowest price. Id . Amidon further argues that, by do ing so, the Army conducted a flawed best value analysis. Id

. Amidon’s argument is contradicted by the reco rd. The Source Selection Decision Document for this procurement states that the Army assigne d Amidon a final technical rating of “Good.” Def. App. at 51 (Source Selection Decision Document). By comparison, this same document also states that the Army assigned ACLC a final technical rating of “Outstanding.” Id . And so, the Army’s Source Selection Decision Document makes clear th at the Army did not equally rate the proposals submitted by Amidon and ACLC. Id . Amidon also does not dispute th is fact. Pl. Reply at 6-7. And so, a key element of Amidon’s claim in this matter–that the government improperly relied upon price as the sole deciding factor in making its award decision–is simply not supported by the record evidence. 2 In sum, Amidon has not met its burden to s how a “reasonable probability” of succeeding on the merits of this case with respect to both of its challenges to the Army’s award decision. Bannum, Inc. v. United States , 56 Fed. Cl. 453, 457 (2003). Rather, the undis puted material facts in this case show that ACLC’s proposal addr essed live tissue training and that the Army did not base its decision to award the contract to ACLC solely upon ACLC’s lower-priced proposal. In light of

2 The Court acknowledges that the record before the Cour t at this preliminary stage in the litigation does not constitute the full administrative record.10 these undisputed facts, the Court must deny Amidon’s motion for a preliminary injunction. Altana Pharma AG , 566 F.3d at 1005 (“Although the factors are not applied mechanically, a movant must establish the existence of both of the first two factors [likelih ood of success on the merits and irreparable harm] to be entitled to a preliminary injunction.”).

B. Other Factors Weigh Against Gr anting Injunctive Relief In addition, the remaining factor s that the Court considers when weighing whether to grant a motion for a preliminary injunction also weigh agai nst granting Amidon’s motion. First, any harm that Amidon would suffer as a result of the loss of its contract is outweighed by the harm to the government if the Court were to enjoin ACLC’s performance. See PGBA , 389 F.3d at 1229 (in considering a motion for a prelimin ary injunction, the Court balanc es the harm the movant would suffer without preliminary relief, against the harmthat preliminary relief would inflict on the nonmovant); Akal Sec., Inc. v. United States , 87 Fed. Cl. 311, 320 (2009) (“Generally, if the balance tips in favor of defendant, a prelimin ary injunction is not appropriate.”); Reilly's Wholesale Produce v. United States , 73 Fed. Cl. 705, 715–16 (2006). According to the government, ACLC has already begun performance under the contract. Def. Resp. at 14. Enjoining ACLC’s performance under the contract at this time would interfere with the gove rnment’s ability to obtain the important medical training services called for by the contract and would also impose costs a nd burdens on ACLC. It is also without dispute th at Amidon filed this protest 20 days after the GAO denied its protest, and just days before ACLC was scheduled to begin performance. Def. Resp. at 7; Pl. Reply at10-11. While the timing of Amidon’s motion for a preliminary injunction is not necessarily fatal to its request for emergency inj unctive relief, the timing of this request does impose a significant hardship on the government given the proximity to the commencement of ACLC’s performance. In addition, it is without disput e that the government has a na tional security interest in ensuring the timely and uninterrupt ed performance of this contra ct to provide medical training services at the Joint Special Operations Medical Tr aining Center. Def. Resp. at 6; Pl. Mem. at 8. Given this, the public interest is best served by denying Amidon’s re quest to stay performance of the contract while this litigation proceeds. Akal Sec., Inc. , 87 Fed. Cl. at 320-21 (the Court must11 consider whether granting a motion for a preliminary injunction will further, or injure, the public interest). 3 And so, denial of Amidon’s motion fo r a preliminary injunction is warranted.

V. CONCLUSION In sum, Amidon has not met its heavy burden to show that it is entitled to a preliminary injunction in this matter. For th is reason, the Court will not interf ere with this procurement. The Court, accordingly, denies Amidon’s motion for a preliminary injunction.

Some of the information contained in th is Memorandum Opinion and Order may be considered protected information subject to the Protective Order en tered in this matter on November 23, 2015. This Memorandum Opinion and Order shall therefore be filed under seal. The parties shall review the Memorandum Opinion and Order to determine whether, in their view, any information should be redacted in accordance wi th the terms of the Pr otective Order prior to publication. The Court hereby ORDERS that the parties FILE a joint status report, on or before Monday, December 21, 2015 , identifying the information, if any, that they contend should be redacted in this Memorandum Opini on and Order, together with an explanation of the basis for each proposed redaction.

IT IS SO ORDERED

.

s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge

3 Because Amidon has not established that it is en titled to a preliminary injunction, the Court does not reach the question of the amount of bond.